HC Deb 29 June 1955 vol 543 cc448-60

5.56 p.m.

Sir Lynn Ungoed-Thomas (Leicester, North-East)

I beg to move, in page 2, line 19, to leave out subsection (2).

I move the Amendment less with a view to dividing the Committee on it than to bringing before the Committee and the Government some of the considerations which have been exercising the House of Commons in our earlier debate on the European Coal and Steel Community Bill. The Amendment will provide that immunity should be given in the Bill itself instead of that being done by order under the Diplomatic Privileges (Extension) Act, 1950. It is obviously advantageous when we have a Bill brought before the House of Commons dealing with immunities to deal with those immunities in detail in the Bill instead of dealing with them by order by reference to the 1950 Act.

It is very much clearer to have them laid down in the Bill. It means that we can deal with the whole matter at one time instead of taking two bites at the cherry. It means that the immunities can be considered in detail and that amendments can be made, instead of having the matter dealt with by Order on another occasion on a "take it or leave it" basis.

The Joint Under-Secretary of State for Foreign Affairs will recognise that the Amendment is based to a considerable extent on the European Coal and Steel Community Bill which the House has just discussed. That is because I recognise, as the right hon. Gentleman stated, that the Bill which we have just discussed has given more limited immunity than has been the custom hitherto. I hope that in dealing with cases of conferring immunity, the Government will consider the immunity by reference to the need for it for the purpose of carrying out the work which has to be performed. The immunity is conferred because it is necessary for the purpose, and it should follow logically and as a matter of common sense that the immunity should be limited to what is necessary for that purpose.

In every case, the Government should be in a position to justify to the House of Commons the immunities conferred, solely on the ground that they are necessary for the work which is to be performed. It is no answer at all to say, as the right hon. Gentleman the Joint Under-Secretary indicated in his speech on Second Reading of the European Coal and Steel Community Bill, that we have to confer immunities because they are reciprocal and that we are merely conferring immunities which other people confer on our representatives abroad. In each case the test should be whether the immunities are necessary, and it should be the sole test. It is no advantage to this country, when we find that immunities are being lavishly distributed among foreign diplomats and representatives, to answer that our representatives abroad have similar immunities and privileges.

The right hon. Gentleman will see that in the proposed new Clause which I have placed on the Order Paper, members of the Arbitration Tribunal or Arbitral Commission are given, in the first place, immunities …from suit and legal process in respect of things done or omitted to be done in the course of the performance of their official duties;… The immunity from suit and legal process should be limited to what is done in the course of performance of official duties. That is the intention of the Agreements in accordance with which the Bill is brought forward and I hope that there will be no difficulty about that.

Secondly, members of the Arbitration Tribunal or Arbitral Commission shall be entitled, under my proposed new Clause, to the like inviolability of official residence, official premises and official archives;£x2026; Thirdly, they are to be entitled to the like exemption from income tax in respect of their official emoluments, as are accorded to the envoy of a foreign sovereign power accredited to Her Majesty. I can see some reason for each of these three privileges and immunities. I cannot see any reason for any immunity or any privilege going beyond those three. If the Government have it in mind to confer any further immunity or privilege, I should be glad if they would indicate what they are and why they are necessary.

I should like to say a few words about Income Tax. I can understand Income Tax exemption being given in the case of a foreign diplomat in this country in respect of his official emoluments. I was interested to hear the Joint Under-Secretary say earlier that apparently a distinction is made between persons of the rank of attaché and above as contrasted with those below the rank of attaché, and that in the case of the rank of attaché and above, immunity from Income Tax is given over an appreciably wider collection of sources of income than in the case of those of lower rank.

I cannot see what justification there can be for that distinction, and when the right hon. Gentleman deals with the Amendment he might perhaps consider it convenient to indicate the reason for dealing differently with the levying of Income Tax according to the rank which a person holds. I cannot see at all any validity in a distinction of that kind.

Subsection (2) of my proposed new Clause provides that these immunities …shall not apply to any person being a citizen of the United Kingdom and Colonies;… except so much of subsection (1) as provides for immunity from suit and legal process. The importance which I attach to that subsection is not that it limits immunity but that it expands and extends immunity to persons who are citizens of the United Kingdom and Colonies.

6.0 p.m.

Let us consider that aspect for a moment. If the justification for granting immunity is that it is essential for an official to have it to enable him to carry out his duties, surely it does not make the slightest difference whether that person happens to be a citizen of the United Kingdom and Colonies or is a foreigner. In each case he ought to have sufficient immunity to enable him to perform the duties which are imposed upon him, for which purpose only the immunities are conferred.

If a person is carrying out duties which would entitle him to immunity from suit and legal process in the course of the performance of those duties, I cannot see what justification there is for saying that in the case of a foreigner he should have immunity but if he happens to be a citizen of the United Kingdom and Colonies he is not to have it. We have immunity provided here for the purpose of enabling these people to carry out their duties in these circumstances, and a person who does so ought not to have the immunity taken from him merely because he happens to be a citizen of the United Kingdom and Colonies.

Then the new Clause goes on to prevent the immunity being extended to members of the family. I myself cannot see why it is necessary to extend any immunity to members of the family. Lastly there is the provision in this new Clause to enable a member of the Arbitration Tribunal or Arbitral Commission to waive any immunity granted to him.

The right hon. Gentleman, on Second Reading, said: …no question of waiver arises."—[OFFICIAL. REPORT, 20th June, 1955; Vol. 542, c. 1060.] I completely fail to appreciate that. After all, the Government, in the European Coal and Steel Community Bill, have provided, in Clause 4, that The Chief Representative may waive any immunity, privilege, exemption or relief conferred by this section on himself or on any other person. I should have thought it might very well be the case that the person who enjoyed any such immunity would certainly prefer to waive immunity in any case like a running down case or something of that sort, and have the matter tried by the ordinary courts of this country rather than be put in the invidious position of having an immunity that he cannot waive, which, I understand, is the Government's intention.

Speaking for myself, I should have thought that such a person might very well be entitled to waive immunity if nothing at all was said in the Bill about it, and I merely insert this provision in the proposed new Clause because of the statement made by the right hon. Gentleman that no question of waiver arises and because of the express provision made in the European Coal and Steel Community Bill providing for a waiver by the Chief Representative of the privileges conferred upon him. I hope, for this reason, that this new Clause will commend itself to the House rather than that these matters should be left to be dealt with by Order in Council.

The Joint Under-Secretary of State for Foreign Affairs (Mr. R. H. Turton)

The hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) suggests the conferring in this new Clause of diplomatic privileges on members of the Arbitration Tribunal and Arbitral Commission which we propose to confer by Order in Council. I can see how, having discussed this matter on the European Coal and Steel Community Bill, he finds it difficult to understand why we are adopting a different method here.

The answer is that in these Bills there is a major difference between the High Authority of the European Coal and Steel Community and the members of the Arbitration Tribunal or Arbitral Commission. It is that the High Authority has already decided to establish its delegation in London and, therefore, it is known that the powers will be exercised; but in the case of the Arbitration Tribunal or the Arbitral Commission only experience will show whether it will be necessary for a member to come to the United Kingdom on his official business. Therefore, it would, in my submission, be unwise for the House of Commons to grant, in this Bill, immunities and privileges, the need for which may never arise.

I should like to call in aid some of the arguments that were used only a few minutes ago on the preceding Bill. We want to be careful about spreading diplomatic immunities and privileges which may never be exercised. I would, therefore, rather have the power conferred under the International Organisations (Immunities and Privileges) Act, 1950, which was passed by the Government of which the hon. and learned Gentleman was a member, to bring in Orders in Council, if that is found to be necessary, rather than to insert the privileges in a Bill.

There are also other general observations I will put before the Committee. One is that it must be remembered that under the method which we are proposing in the Bill there will be, as hon. Members will shortly find, opportunities for full discussion of any Orders in Council we may have to introduce, because they will all be subject to the affirmative Resolution procedure. That gives the House of Commons a good safeguard if we find it necessary to give this form of diplomatic immunity as defined under Clause 1 (2) of the Bill.

There is another additional advantage in the Act passed in 1950 by the Labour Government, that the names of all those persons who are receiving diplomatic immunities and privileges have to be published in the London, Edinburgh and Belfast Gazettes. If we adopt the suggestion made in this new Clause we would lose all the advantage of publication. That, I think, is a consideration.

Turning from those general observations, I would suggest that the right way of doing this is by using the 1950 Act rather than by inserting in the Bill the terms of this new Clause. I am afraid that a strict imitation of the European Coal and Steel Community Bill does not make sense in this connection. First of all, subsection (1) of the new Clause would be insufficient. What we have to remember when we deal with this particular problem is that this Tribunal and Commission, if either comes to this country and settles, are entitled, by the terms of the Convenion, to the same immunities and privileges as are accorded the chief representative or members of diplomatic missions respectively.

That is an important fact because, having signed those Conventions and agreed them with the other Powers, I am certain that the Committee would wish Her Majesty's Government to honour their words. Other Powers are giving those same immunities and privileges on that scale in their own territories and we must abide by the word we have given.

I did not agree with the hon. and learned Gentleman the Member for Leicester, North-East when he said that he could not understand how reciprocity came into it. Of course, reciprocity must come in because a Convention is the agreement of certain Powers to do a certain thing. Once we have signed our name to it, we have to keep our part of the bargain just as much as the other Powers concerned.

There is also the other question of reciprocity, on which I think the hon. and learned Gentleman misunderstood me when I said how important reciprocity was. It was not merely that we should keep on increasing the scale above what we need give, but that we must see to it that we were never giving a scale that was higher than that accorded by other countries. In other words, there might well be a justification for reducing our scale of immunities and privileges if other countries did not accord the same scale. Although it is not very pertinent to this Bill, I hope he will accept that as the explanation he wanted me to give on the remarks I made a few minutes ago on a previous Measure.

Let me point out next that the differences between the treatment accorded to the chief of a diplomatic mission and that accorded to a member of a mission are not very great and we will take them into account in drafting the Order in Council. What is contained in the proposed new Clause, however, does not take into account all the differences between the treatment accorded to the head of a mission and that accorded to the member of a mission.

Sir L. Ungoed-Thomas

But are we not dealing here only with the members of the Tribunal, so that that definition does not arise in this case?

Mr. Turton

Yes, the members of the Tribunal are to be treated on the scale of immunities as the head of a mission—that is, full diplomatic immunity—which the terms of the Convention prescribe. What the hon. and learned Gentleman is giving by his proposed new Clause is a scale that is not that of the head of a mission. It is, as I explained on the previous Bill—I am sorry to keep referring to it—the betwixt and between stage. The hon. Member for Accrington (Mr. H. Hynd) talked about a Mark II scale. That is why, on the broad principle, this Clause will not fit our undertaking under the Convention.

Taking it paragraph by paragraph, paragraph (a) is insufficient. In fact, it confers no greater immunity than is already conferred by Clause 1 (1) of this Bill. If the hon. and learned Gentleman will refer to Article 2, paragraph 4 (b) of the Charter of the Arbitration Tribunal in page 8 of the Blue Book, and to Article 4, paragraph 3 (b) of the Charter of the Arbitral Commission on Property Rights and Interests in Germany, which is in page 106 of the Blue Book, he will see that we have already undertaken to give full immunity from suit to members of the Tribunal and to members of the Commission respectively who are not of our nationality when the Tribunal or Commission sits in this country, and all members of the Tribunal or Commission who are not of German nationality are accorded similar immunity while they are in the Federal Republic.

6.15 p.m.

My answer to the hon. and learned Gentleman's question why our own nationals should not have this immunity from suit is that they have got the limited immunity from suit under Clause 1 (1) but, as they are themselves nationals in this country, it is not necessary or right for them to have the wider immunity that would be conferred under Clause 1 (2).

Paragraph (b) of the proposed new Clause is not very different from the immunities and privileges in respect of residence which are normally granted diplomatically. I do not really take issue with that paragraph: it is very like the normal diplomatic privileges. Paragraph (c), is, again, insufficient since it confers exemption from Income Tax only in respect of emoluments, whereas, under the Conventions, we have promised to give relief from all taxation for the payment of which the individual judge is responsible. In passing, I should say that I would not have thought there was much Income Tax payable by the judge who spent a few days sitting on a Tribunal or Commission here, but that is by the way. We have given this undertaking in the Convention and I know that the Committee will want us to respect it.

That part of subsection (2) of the proposed new Clause which exempts members of the family from privileges is again in conflict with the engagement we have given in the Conventions, and this, I hope, the Committee will recognise as specially important since it must be remembered that the families of the British members of the tribunal will also have been granted, and will be enjoying, such privileges in Germany. Therefore, the effect of the proposed new Clause would be that those families would immediately have their privileges taken from them.

Mr. James Harrison (Nottingham, North)

The right hon. Gentleman is coming back now to the question of reciprocity. I understood that the chief theme of my hon. and learned Friend's submission was that of need. Perhaps the right hon. Gentleman would address himself to that argument. In doing so, the Committee should recognise that need must essentially vary from place to place. The question of reciprocity seems to cut right across the argument of need in these matters.

Mr. Turton

Perhaps I used the word "reciprocity" wrongly there. On other questions it may be a question of reciprocity, but here it is a question of the bonds and engagements of Britain under Conventions. We have engaged with the other Powers to take certain action and to give certain immunities and privileges. They are giving those immunities to British nationals under those Conventions in, shall we say, the Federal Republic of Germany. That is why I claim that we must act similarly to the families here. The word "reciprocity" slipped out; reciprocity does not arise here. It is a question of honouring our pledged word and, therefore, the question of need, once the Conventions have been agreed and signed, is not so material.

On the question of subsection (3) of the proposed new Clause, dealing with waiver. I think that the hon. and learned Gentleman misunderstood me. What I meant to imply in the Second Reading debate was that waiver is more difficult as regards a member of a Tribunal than it is where a member of a Mission is involved. Normally, it is not the person affected who applies the waiver, but the Government which he represents.

I can tell him that in all cases of Orders in Council under the 1950 Act Her Majesty's Government have always been at pains to provide for waiver of immunity. But there is this difference: that in the case of immunities and privileges of members of the Arbitration Tribunal and Arbitral Commission waiver cannot be exercised by any international organisation, and the only waiver which could be contemplated would be a waiver of his immunity by the judge himself.

I am ready to undertake to look into this question of waiver should it ever be necessary to introduce an Order in Council under the 1950 Act in respect of Clause 1 (2). I have the feeling that all the persons covered by the immunities will be persons of standing and repute. It is probably not too optimistic to hope that they will settle genuine claims against them, despite any immunity conferred by any Order; judges may be expected to understand that diplomatic privilege only confers immunity from local jurisdiction and not exemption from legal liability.

I am in sympathy with the view that if we can, we ought to have some provision for waiver in any Order. But there are difficulties in this matter and I hope that on reflection, the Committee will accept my submission, for the reasons I have stated, that the method proposed in Clause 1 (2) is the right way to fulfil the obligations into which we have entered under these Conventions.

Mr. H. Hynd (Accrington)

As I understand, the main argument advanced by the Minister is that we are already committed to this by our signature to the Conventions. That seems to me very unfortunate. We are in the unfortunate position of having a Minister telling us that here is something in a Bill about which even he, apparently, is not 100 per cent. enthusiastic but, nevertheless, someone negotiating on our behalf has already signed his name, and, therefore, the House of Commons should not upset it. I think we should try to avoid situations of that kind. If we look at this matter on its merits, I feel that there would be objections by the Committee to putting in a privilege of this kind, and I hope that such a procedure will be avoided in the future.

The Minister made a big point of the fact that these powers may never be required. He justified this procedure, as distinct from the procedure in connection with the Coal and Steel Community, by saying that this will involve the introduction of an Order in Council only if and when that should be necessary. If that be so, why have this in the Bill? There should be no insuperable difficulty about amending the Bill, if and when these powers are necessary, along lines similar to the Clause in the Bill dealing with the Coal and Steel Community. I cannot understand why it should be necessary to have this Clause, after what the Minister has said. That argument is the best possible support that my hon. and learned Friend could have for his proposal to leave out the Clause altogether.

Sir L. Ungoed-Thomas

As I indicated in my opening remarks, it is not my purpose to press this Amendment to a Division. It was merely a convenient method of bringing before the Government certain points for their consideration. I recognise at once that the Agreement has been entered into and that there are obligations which must be honoured. But, as has been pointed out by my hon. Friends, we are not so much concerned with that as to bring before the Government our consideration of the merits of this case independently of the Agreement. That is why we put down the Amendment and why we are not pressing it to a Division.

I was completely unconvinced by the argument so ingeniously put forward by the right hon. Gentleman regarding the provision that the immunities should be covered by order rather than be inserted in the Bill.

Mr. H. Hynd

Not "ingenious," but "ingenuous."

Sir L. Ungoed-Thomas

Perhaps I know the right hon. Gentleman rather better than my hon. Friend, so I shall stick to my word.

If power is taken by Order it will require the affirmative procedure. But then, of course, we cannot deal with it by way of amendment. It is much the less appropriate method for dealing with this kind of thing, once there is a Bill already dealing with it. I venture to put forward for the consideration of the Government—I put it as high as this—that, where a Bill has to be brought before the House dealing with immunities, the immunities should be dealt with in the Bill and not by Order by reference to the 1950 Act.

The whole point of the 1950 Act is to be able, in appropriate cases, to avoid coming before the House with a Bill at all. Obviously, in those cases it is convenient to use the 1950 Act. But when we have to bring a Bill before the House to deal with the subject matter to which the immunity refers, surely—even to put it no higher—it is only a courtesy to the House that the immunities should be incorporated in the Bill and that the House, in Committee, should have an opportunity of dealing with them. I suggest that for the consideration of the right hon. Gentleman and his hon. Friends.

It is no use saying that the advantage of the procedure by Order is that when a member of the Tribunal is sent over here, we can then consider what immunities and privileges shall be conferred on him. That is entirely contradicted by what the Minister himself said later, namely, that the privileges which have to be conferred are already specified in the Convention. That, in fact, was the major argument which the right hon. Gentleman advanced in justification of this position; that we were bound by the Convention. The Convention will dictate what he has to do by Order in Council just as much as what he would have to do were it inserted in the Bill.

I would say a word about reciprocity to clear up the point, because there has been a good deal of misunderstanding. May I put it to the right hon. Gentleman in this way? The test for powers of this kind when a convention is made—long before we come to the stage of dealing with it and implementing it by a Bill in the House—should be the stringent test of what is necessary for the purpose of performing the work for which the immunity is conferred. That should be the only test.

I recognise that it may very well be that the immunities which have to be conferred in country A may be greater than the immunities necessary in country B. I recognise, also, that in those cases reciprocity would come into operation, because we could not expect the greater immunities in country A without conferring the same greater immunities in country B. But the test, the ordinary test, before we get to the reciprocity stage, should be what is necessary, and only what is necessary, for the purpose of carrying out the tasks which have to be performed.

6.30 p.m.

I repeat—and I still cannot see the answer to my original suggestion—that for that purpose certain of the immunities would be as necessary for a person who is a citizen of the United Kingdom and Colonies as for anyone else. I completely fail to see the difference.

The truth is that a good many of these immunities, such as immunity from taxation, are not immunities which are necessary for the purposes of the task. They are immunities that have arisen by processes of international convention between one country and another. They have become part of the etiquette of international diplomacy, but there is no reason why that etiquette should be extended to these new bodies now being created, except—and I can see the reason for this—in the limited case of the emoluments that are actually paid by the international organisation. The immunities should be limited to that, and to that alone.

I hope that when the Government deal with other conventions—and other conventions conferring immunities are bound to be dealt with—they will, as a result of this debate and the earlier debate on the European Coal and Steel Community Bill, appreciate the jealousy with which the House regards the conferring of these immunities, and that they should be restricted and further restricted to the purposes for which they are necessary and to those purposes only.

I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

Clauses 2 and 3 ordered to stand part of the Bill.

Preamble agreed to.

Bill reported, without Amendment; read the Third time and passed.